Sanderson v. Everson

• Decision Date: 17 May 1913
• Docket Number: 17,163
• Citation: 141 N.W. 1025,93 Neb. 606
• Parties: PETER A. SANDERSON, APPELLEE, v. ALEX C. EVERSON ET AL., APPELLANTS
• Court: Nebraska Supreme Court

141 N.W. 1025

93 Neb. 606

PETER A. SANDERSON, APPELLEE, v. ALEX C. EVERSON ET AL., APPELLANTS

No. 17,163

Supreme Court of Nebraska

May 17, 1913

APPEAL from the district court for Buffalo county: BRUNO O HOSTETLER, JUDGE. Reversed.

REVERSED.

Thomas F. Hamer, for appellants.

H. M Sinclair and Willis D. Oldham, contra.

REESE C. J. BARNES, LETTON and SEDGWICK, JJ., concur. ROSE, FAWCETT and HAMER, JJ., not sitting.

OPINION

REESE, C. J.

The defendants Alex C. Everson and Canzada Everson, husband and wife, were the owners of lots 1, 2 and 3, in block 18, of the Kearney Land & Investment Company's Choice addition to the city of Kearney, in Buffalo county, and occupied the property as a family homestead; the apparent title to the property being held by the wife, Canzada Everson. On the 21st of May, 1910, the husband sold the property to plaintiff, Peter A. Sanderson, the agreed price being $ 4,000. Plaintiff paid the sum of $ 500, when defendant Alex C. Everson executed to him the following receipt: "Kearney, Nebr., May 21, 1910. Received of P. A. Sanderson, five hundred dolls. as the first payment on the lots 1 & 2 & 3 in Bk. 18, Kearney Land & Investment Choice Add. to Kearney, price to be $ 4,000. Subject to Mrs. A. C. Everson approval of sale. A. C. Everson." The sale was approved by Mrs. Everson, and an abstract of the title to the property was furnished to plaintiff, who submitted it to an attorney for investigation. The attorney questioned the title; his principal reason being that within the chain of title there was a deed made to "Lewis P. Main and Edith E. Main, husband and wife, joint tenants with right of survivorship," and, Mrs. Main having died, the property was conveyed to the next purchaser by Lewis P. Main in his own right. It is shown by the evidence that there was one child born to Mr. and Mrs. Main, who is now living, and at the time of the trial was between 17 and 18 years of age. The title was rejected by the attorney on the ground that the law of joint tenancy with the right of survivorship does not exist in this state.

The plaintiff, Sanderson, then brought suit for the recovery of the $ 500 paid on the purchase price, alleging that defendant Alex C. Everson had no title to the property, and that his wife, Canzada Everson, had but an imperfect title, at least doubtful, to the undivided half thereof, and that, upon the discovery of the defect in the title, plaintiff had informed defendants that he would go no further with the purchase, and demanded the return of the $ 500 paid, which was refused. The defendants answered, in effect denying the right of plaintiff to recover, and presenting their cross-petition for the enforcement of the sale, the specific performance of the contract by plaintiff, or, in case of his failure to perform the same, that the property be sold as upon foreclosure and the proceeds applied to the payment of the amount found due, with judgment for any deficiency which might remain. A trial was had to the court; the result being a judgment in favor of plaintiff and against defendant Alex C. Everson for the $ 500, with interest and costs; that there was no cause of action against Canzada Everson. The cross-petition of defendants was dismissed; the court holding that "the doctrine of joint tenancies with its incidents at common law never did apply to the tenures existing between husband and wife, but estates between them that partook of this nature were confined to entireties; and, furthermore, that such tenancies, whether between husband and wife, or between other parties, are not applicable to our laws, and are 'repugnant to our institutions and the American sense of justice to the heirs,' and that such estates do not exist in this state." Defendants appeal.

The possession of the property was never changed, but, so far as is shown by this record, is still with defendants. There is no evidence that a deed was ever tendered by defendants to plaintiff. As the case is presented here there are but two questions submitted for decision: First, does the law of joint tenancies, with survivorship, exist in this state; and, second, if so, can it be applied to a conveyance to the husband and wife where an effort is made to create such tenancy?

As to the conveyance to husband and wife, we are persuaded that such fact can have no influence on the result, for, in so far as their...